Singapore’s Law Banning “Gross Indecency” Between Men: All But Gone?

Benjamin Joshua Ong

Singapore Management University

In the past, various constitutional challenges to section 377A of Singapore’s Penal Code – which criminalises “gross indecency” between male persons, whether “in public or private” – all failed. The courts rejected the argument that section 377A discriminates against men who have sex with men, and hence violates (inter alia) Article 12(1) of Singapore’s Constitution: “All persons are equal before the law and entitled to the equal protection of the law.” Things have now changed.

In its latest decision on the issue,  Tan Seng Kee v Attorney-General, the Court of Appeal (Singapore’s highest court) – constituted by five judges rather than the usual three – stated that “homosexual individuals are ‘part of our society’ and ‘our kith and kin’”, and ordered that “the entirety of s 377A is unenforceable”. The court did not, however, declare s 377A unconstitutional. Section 377A is, curiously, valid but unenforceable law. 

The “Political Compromise” Given Legal Force

The court’s decision hinges on two statements which the court called the “political compromise”. First, in 2007, the Prime Minister – in response to a petition – said in Parliament that section 377A would be retained but not “proactively enforce[d]”. Second, in 2018, the Attorney-General – who is also the Public Prosecutor, and has discretionary power to decide whom to prosecute and on what charges – declared (twice) that “absent other factors”, “two consenting adults in a private place” would not be prosecuted under section 377A. 

The Court of Appeal invoked the administrative-law doctrine of “substantive legitimate expectations” to give legal force to the Attorney-General’s statement. The Court stated that: “a failure to recognise the legal effect of [the Attorney-General’s] representations may expose some individuals to the grave threat of prosecution and the attendant deprivation of liberty”. After all, the Attorney-General’s statement had led individuals “engaging in consensual homosexual sexual activity in private” to legitimately expect that “they would not be prosecuted for such conduct.”

Further, while the Attorney-General’s statement was that consenting adults in private would not be prosecuted “absent other factors”, the court ordered that nobody is to be prosecuted under section 377A. Thus, the court removed the uncertainty inherent in the words “absent other factors”, and recognised that any invocation of section 377A can “giv[e] rise to a sense of harassment or curtailing [homosexuals’] ability to live peacefully in our society”. Now, male-male sexual conduct can only be prosecuted if it amounts to an offence under another (gender-neutral) law, such as laws prohibiting public obscenity and sexual assault.

What if the Attorney-General Decides to Change the Policy?

But what if the Attorney-General decides to reverse the policy of non-prosecution? On its face, that would make it lawful to prosecute consenting adults, despite the Prime Minister’s 2007 statement. After all, it is the Attorney-General, not the Prime Minister, who has the “exclusive constitutional responsibility for prosecutions”. 

But matters may not be so simple. If the Prime Minister’s 2007 statement was irrelevant, why did the court refer to it at all? The court has given us at least two tantalising remarks. First, while the Attorney-General is not bound by the Prime Minister’s statements, his prosecutorial decisions are “informed by the public interest” (emphasis added). Second, the Prime Minister’s statement was “legally significant” as it was an “express articulation of the public policy and the public interest in respect of s 377A” (emphasis added). It may not be as straightforward for the Attorney-General to reverse his policy as it may initially appear.

Moreover, if the Attorney-General reverses his policy, anyone who faces a “real and credible threat of prosecution” – in practice, any man who has sex with men – could challenge the constitutionality of section 377A on equality grounds. He could draw, not only on a recent article by former Chief Justice Chan Sek Keong, but also on the court’s persuasive (though non-binding) remarks in Tan Seng Kee about the right to equality. 

In Singapore, a law that treats different groups of people differently is compatible with the Article 12 right to equality if there is a “rational nexus” – in other words, a logical link – between the differential treatment and the aim of the law. (This is called the “reasonable classification” test.) According to the 2015 case of Lim Meng Suang, section 377A passes this test as it aims (to use the Tan Seng Kee court’s words) “to criminalise male homosexual conduct owing to the perceived undesirability of such conduct”. In other words, section 377A is constitutionally valid because what it does (criminalising male-male sex) has a “rational nexus” with the aim (to criminalise male-male sex). 

In Tan Seng Kee, the Court of Appeal cast doubt on this circular reasoning. It added: “The court should… be chary of construing or applying the ‘reasonable classification’ test in a manner that effectively denudes [Article] 12 of real force.” 

The Court of Appeal even went on to provide an example of an argument that section 377A violates the right to equality: if the aim of section 377A is “the expression of societal disapproval of homosexual conduct in general or the safeguarding of public morality generally”, section 377A would not be rationally connected to that aim because it criminalises only male-male but not female-female sexual conduct.

In short, if the Attorney-General revokes the policy of non-prosecution, any man who has sex with men could challenge the constitutionality of section 377A, using the Court of Appeal’s remarks as powerful ammunition. This possibility, in turn, incentivises the Attorney-General to retain the policy of non-prosecution. 

Future Legal Battles about the Constitutionality of Section 377A?

Nonetheless, as advocacy groups have pointed out, section 377A may still have indirect legal effects even if it is not enforceable in criminal law. Previously, the Court of Appeal cited the existence of section 377A (even if it was not enforced) as evidence of a “public policy against the formation of same-sex family units”. This “policy” may be considered when deciding on (for example) adoption applications. Despite the non-prosecution policy, there are still areas – such as adoption law – in which the constitutionality of section 377A may be in issue. 

Paradoxically, this may explain why the Court of Appeal did not address the constitutionality issue, which was the main issue the parties had been prepared to argue. While there is no explicit doctrine of constitutional avoidance, the Singapore courts avoid issues involving “polycentric political considerations” and wish to avoid a “combative relationship” with the other branches. This explains why, even as it sought to “minimis[e] the prevailing legal untidiness”, the court wished to keep “issues of… profound public and moral significance” within the “realm of democratic decision” – even if the subject of those moral issues also engages issues of law, which are ultimately within the courts’ domain. The court will address such legal issues (after disentangling them from the non-legal ones) only in an appropriate case when it really must.

In short, despite the Court of Appeal’s hints that section 377A may be unconstitutional, Tan Seng Kee is ultimately a case study in judicial self-restraint in order to preserve space for political processes to operate. For now – but only for now – the courts have avoided the difficult question of what happens when the product of “democratic decision” demonstrably violates constitutional rights, in which case the court will have no choice but to deploy the “sharp edge” of judicial review.

Benjamin Joshua Ong is an Assistant Professor of Law at the Yong Pung How School of Law, Singapore Management University. He is grateful to his colleague Lau Kwan Ho for a fruitful discussion about the Tan Seng Kee case, as well as to Anna Dziedzic and Pravar Petkar for their helpful comments on a previous draft of this post.

Suggested Citation: Benjamin Joshua Ong, ‘Singapore’s law banning “gross indecency” between men: all but gone?’ IACL-AIDC Blog (12 April 2022) https://blog-iacl-aidc.org/new-blog-3/2022/4/12/singapores-law-banning-gross-indecency-between-men-all-but-gone.